TMI Blog1978 (3) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Third Schedule read: "10. Vegetables (other than green ginger), whether roots, green fruits or leaves, used for human consumption including tapioca, yam, potatoes, lime, sabola and tomatoes, except their manufactured products. Explanation.-The term 'vegetables' shall not include any goods of the description specified in the First or Second Schedule." By the amending Act of 1974 referred to supra, the word "tapioca" was omitted from the inclusive part of the explanation to item 10 of the Third Schedule; and instead of treating it as an item exempted from taxation under the Third Schedule it was lifted into the First Schedule as one of those items to be taxed at the last purchase point in the State at the rate of 2 per cent. The entry reads as follows: ------------------------------------------------------------------------------- "Sl. Description of the goods Point of levy Rate of tax No. ------------------------------------------------------------------------------- 72 Tapioca At the point of last 2 per cent purchase in the State by a dealer who is liable to tax under section 5. --------------------------------------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President." It is not contended that the consent of the President has been obtained for the legislative amendments in question either previous to the amendments or subsequent thereto. The contention of the learned AdvocateGeneral has been plainly and simply that there is no contravention of article 301 and, therefore, no case for any Presidential assent. 3.. Counsel for the appellants invited our attention to Firm A.T.B. Mehtab Majid and Co. v. State of Madras[1963] 14 S.T.C. 355 (S.C.); A.I.R. 1963 S.C. 928., where rule 16(2) of the Madras General Sales Tax Rules was struck down as invalid as contravening article 301 of the Constitution. Observed the court: "10. It is therefore now well-settled that taxing la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la v. A.B. Abdul KadirA.I.R. 1970 S.C. 1912. [1968] 3 S.C.R. 829. After remand by the Supreme Court in the above case, the Luxury Tax Act was sustained by a Division Bench of this Court in Abdul Kadir v. State of Kerala1971 K.L.J. 4. The decision was sustained by the Supreme Court-see A.B. Abdul Kadir v. State of KeralaA.I.R. 1976 S.C. 182. 4.. Counsel for the appellants drew our attention to the observations of Mathew, J., in G.K. Krishnan v. State of Tamil NaduA.I.R. 1975 S.C. 583., at paragraph 27: "That apart, taxing powers of the Union and States are separate and mutually exclusive. It is rather strange that power to tax given to States, say, for instance, under entry 54 of List II to pass a law imposing tax on sale of goods should depend upon the goodwill of the Union executive. It is said that a tax on sale does not impede the movement of goods. But, Shah, J., said in State of Madras v. Nataraja[1968] 22 S.T.C. 376 (S.C.): 'that tax under the Central Sales Tax Act on inter-State sales, it must be noticed, is in its essence a tax which encumbers movement of trade and commerce'. However, Bachawat, J., in his separate judgment in that case said that article 301 makes no disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f article 301 is involved only if the impugned law directly and immediately affects the movement part of the trade as was ruled in at least three of the Supreme Court decisions noticed earlier. We do not think the trend of these rulings has been departed from. The learned Advocate-General invited our attention to the recent decision of the Supreme Court in V.G. Naidu Sons v. State of Tamil Nadu[1976] 38 S.T.C. 565 (S.C.); A.I.R. 1977 S.C. 548. In that case, the validity of the levy of sales tax on raw hides and skins and on dressed hides and skins again came up for consideration, as an aftermath of A.T.B. Mehtab Majid Co.'s case[1963] 14 S.T.C. 355 (S.C.); A.I.R. 1963 S.C. 928. It was pointed out that the legislature had taken into account the higher price of dressed hides and skins as compared to the price of raw hides and skins; and also taken further note of the fact that no tax under the Act had been paid in respect of those hides and skins. It calculated the price of hides and skins in the dressed condition to be double that of raw hides and skins; and in order to obviate and to prevent discrimination it prescribed the rate of tax for sale of dressed hides and skins which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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